Nadrowski v. ClevelandNadrowski v. Cleveland
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: September 15, 2022
Appearances:
Paulozzi Co. LPA, Todd O. Rosenberg, and Amy L. Higgins, for appellant.
Mark Griffin, Cleveland Director of Law, and Amy K. Hough, and Craig J. Morice, Assistant Directors of Law, for appellee.
MARY J. BOYLE, J.:
{¶ 1} Plaintiff-appellant, Rita Nadrowski (“Nadrowski“), appeals the trial court‘s judgment granting summary judgment in favor of defendant-appellee, the city of Cleveland (“City“). At issue is whether the City is immune from a negligence claim by Nadrowski when she tripped and fell while crossing the street. For the
I. Facts and Procedural History
{¶ 2} In May 2018, Nadrowski and her friends attended a flea market (“the Flea“) on E. 36th Street in Cleveland. Upon exiting the Flea, Nadrowski found herself in a large crowd of pedestrians of approximately 40-50 people, walking two-by-two. Nadrowski was less than an “arm‘s length” away from the person directly in front of her. She was so close that she could only see the back of that person‘s head. She was not able to see the street in front of her. The crowd exited at an angle across the street. As Nadrowski crossed the street, her feet hit what she initially thought was a “curb, and [she] went down on [her] knees, [her] hands and then [her] whole body.” (Nadrowski Deposition, tr. 17.) She later determined that her feet caught an uneven area of the street that had a difference in elevation of two inches or more. Nadrowski does not know the exact area of her fall. She recalled that the area was in proximity to a fire hydrant and several orange pipes. Nadrowski took photos of the area in October 2018, which depict a greater than two-inch defect in the street.
{¶ 3} In May 2020, Nadrowski filed a complaint against the City, along with other defendants, who are no longer involved in the lawsuit. Nadrowski alleged negligence against the City for failing to maintain a public roadway. In its answer, the City asserted statutory immunity pursuant to
{¶ 4} The trial court granted the City‘s motion for summary judgment, stating that
[Nadrowski‘s] complaint alleges that the City was negligent and/or reckless in maintaining a portion of a public road. [Nadrowski] alleges that the City failed to repair a two-inch elevation in the street, and as a result [Nadrowski] tripped and fell and suffered injuries.
R.C. 2744.02(A)(1) establishes a general grant of sovereign immunity, providing that a political subdivision is not liable for damages for injury, death, or loss to person or property incurred in connection with the performance of a governmental or proprietary function. The maintenance and repair of roads is a “governmental function.”R.C. 2744.01(C)(2)(e) .R.C. 2744.02(B)(3) , however, provides an exception to the general grant of sovereign immunity for injuries or losses resulting from the “negligent failure to keep public roads in repair and other negligent failure to remove obstructions from public roads.” Todd v. City of Cleveland, 8th Dist. Cuyahoga No. 98333, 2013-Ohio-101, ¶ 10-11. As such, [the City] is afforded immunity underR.C. 2744.02(A)(1) unless one of the exceptions inR.C. 2744.02(B) apply to reinstate liability to the political subdivision. See Bradshaw v. New Village Corp., 2018-Ohio-691, 95 N.E.3d 446, ¶ 9-11. (8th Dist.).Here the roadway was not deteriorated, in disrepair, or obstructed. The City‘s records indicate that crews were present 10 days before [Nadrowski‘s] alleged accident and inspected the roadway. The Court finds that a two-inch difference in elevation does not render the road in disrepair nor is it an obstruction. See, Todd v. City of Cleveland, 8th Dist. Cuyahoga No. 98333, 2013-Ohio-101.
The Court finds that there is no genuine issue of material fact as to create an exception to the City‘s statutory immunity under
R.C. 2744.02 or that would allow a reasonable person to believe that [the City was] negligent within the parameters ofR.C. 2744.02(B)(1) . In viewing the facts and construing the evidence in the light most favorable to [Nadrowski] as the non-moving party, the Court finds that there are no genuine issues of material fact and that reasonable mindscould only come to one conclusion: [the City is] entitled to judgment as a matter of law under Civ.R. 56(C) pursuant to the immunity provided underR.C. 2744.01 et seq.
(Trial Court‘s Judgment Entry, Dec. 6, 2021.)
{¶ 5} It is from this order that Nadrowski now appeals, raising the following single assignment of error for review:
Assignment of Error One: The trial court erred since the 2-inch rule applies to cities and political subdivisions.
II. Law and Analysis
A. Standard of Review
{¶ 6} An appellate court reviews the grant or denial of summary judgment de novo. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241 (1996). In a de novo review, this court affords no deference to the trial court‘s decision and we independently review the record to determine whether the denial of summary judgment is appropriate. Hollins v. Shaffer, 182 Ohio App.3d 282, 2009-Ohio-2136, 912 N.E.2d 637, ¶ 12 (8th Dist.).
{¶ 7} Summary judgment is appropriate if (1) no genuine issue of any material fact remains; (2) the moving party is entitled to judgment as a matter of law; and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and construing the evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. Grafton at 105, citing State ex rel. Cassels v. Dayton City School Dist. Bd. of Edn., 69 Ohio St.3d 217, 631 N.E.2d 150 (1994).
B. Political Subdivision Immunity
{¶ 9} A determination of whether a political subdivision has immunity involves a three-step analysis. Smith v. McBride, 130 Ohio St.3d 51, 2011-Ohio-4674, 955 N.E.2d 954, ¶ 13, citing Colbert v. Cleveland, 99 Ohio St.3d 215, 2003-Ohio-3319, 790 N.E.2d 781; Lambert v. Clancy, 125 Ohio St.3d 231, 2010-Ohio-1483, 927 N.E.2d 585. First, the party alleging immunity must enjoy a general grant of immunity under
{¶ 10} Both parties agree the City has immunity under
{¶ 11} Nadrowski first argues that the City had a duty to repair the street, which is separate from the City‘s duty to remove obstructions. In support of her argument, she refers to the deposition testimony of Kenneth Cenname (“Cenname“), who supervised street maintenance and repair in that area. Cenname testified that if there was a two-inch elevation in the street, the City would have repaired it by ramping it with asphalt.
{¶ 12} We note that this Court has interpreted
{¶ 13} The Ohio Supreme Court has held that for purposes of
{¶ 14} The term “in repair” has been interpreted to include “‘fixing holes or crumbling pavement,’ i.e., repairing potholes, when a road is deteriorating.” Todd at ¶ 15, quoting Crabtree at ¶ 27, citing Bonace. Therefore, the City has a duty to repair roads that have deteriorated into a potentially hazardous condition, and the negligent failure to do so could result in liability to the City. Id.; Leslie v. Cleveland, 2015-Ohio-1833, 37 N.E.3d 745, ¶ 12 (8th Dist.).
{¶ 15} Because the City‘s immunity could be abrogated under
{¶ 16} We note that courts have developed the “two-inch rule.” This rule provides that a difference in elevation of two inches or less in height between two adjoining portions of a sidewalk or walkway is considered insubstantial as a matter of law and thus is not actionable. Stockhauser v. Archdiocese of Cincinnati, 97 Ohio App.3d 29, 33, 646 N.E.2d 198 (2d Dist.1994), citing Cash v. Cincinnati, 66 Ohio St.2d 319, 421 N.E.2d 1275 (1981). Here, Nadrowski fell on a public road, not a sidewalk or walkway. See Meyer v. Dayton, 2016-Ohio-8080, 74 N.E.3d 921 (2d Dist.) (where the court applied “two-inch rule” to airport parking lot, not a public roadway). Therefore, the two-inch rule is inapplicable to the instant case. Moreover, ”
{¶ 17} While the two-inch rule is inapplicable to the instant case, we still must address if the City breached its duty to repair faulty road conditions. The
{¶ 18} In the instant case, the evidence demonstrates that Nadrowski did not know the exact location of where she fell. Rather, she knew of the general area. She did not take any photographs of the area at the time of her fall. Nadrowski testified that she revisited the area over four months later, in October of 2018, and took photographs of where she believes she may have fallen. City records indicate its crews were on E. 36th Street on March 17 and 19, 2017, and May 2, 2018, which was ten days before Nadrowski‘s fall. Cenname testified that his unit inspected the area of E. 36th Street where Nadrowski fell on May 2, 2018.
{¶ 20} Nadrowski‘s expert, Richard L. Zimmerman (“Zimmerman“), whose expertise included supervision and inspection of repaired asphalt paving of roadways, provided a report that included photographs of the area dated February 15, 2020, which was 21 months after the incident. Zimmerman‘s report verified that the elevation difference in the photographs was two inches or more. These photographs, however, are the same photographs Cenname discussed at his deposition where he indicated that E.36th Street did not have that elevation difference in 2018. (Cenname Deposition, tr. 20.)
{¶ 21} After reviewing evidence in a light most favorable to Nadrowski, we find that there is no genuine issue of material fact and reasonable minds can come to but one conclusion – the City is entitled to political subdivision immunity. The record demonstrates that Nadrowski could not clearly identify where she fell or what caused her to fall. Furthermore, the photographs on which she relies to establish a defect in the street were taken either four or twenty-one months after the incident. There is no evidence in the record indicating that the City knew the street needed
{¶ 22} Therefore, the sole assignment of error is overruled.
III. Conclusion
{¶ 23} The trial court‘s grant of summary judgment in favor of the City is proper. The exception set forth in
{¶ 24} Accordingly, judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE
ANITA LASTER MAYS, P.J., and
FRANK DANIEL CELEBREZZE, III, J., CONCUR